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Exhibit 10.46
WARRANT AGREEMENT OF
THE XXXXXX ENTERTAINMENT COMPANY
200,000 SHARES
Dated as of March 23, 1998
COMMON STOCK PURCHASE WARRANT
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WARRANT AGREEMENT dated as of March 23, 1998, between The Xxxxxx
Entertainment Company, a California corporation (the "Company"), the Company as
Warrant Agent (in such capacity, "Warrant Agent"), and the persons signing below
as the "Warrant Holder" or "Holder".
The Company proposes to issue three Common Stock Purchase Warrants as
hereinafter described (the "Warrant") to purchase an aggregate of up to 200,000
shares of its Common Stock (the "Common Stock"), no par value per share (the
shares of Common Stock issuable on exercise of the Warrant being referred to
herein as the "Warrant Shares"), in favor of the Warrant Holder.
In consideration of the employment services to be provided to the
Company by the Warrant Holder pursuant to a management services agreement dated
as of March 23, 1998 between the Company and Global Media Management Group,
Inc., and for the purpose of defining the terms and provisions of the Warrant
and the respective rights and obligations thereunder of the Company and the
Holder, the Company and the Warrant Holder hereby agree as follows:
SECTION 1. TRANSFERABILITY AND FORM OF THE WARRANT.
1.1 REGISTRATION. The Warrant shall be numbered and shall be
registered on the books of the Company maintained at the principal office of the
Company in Los Angeles, California ("the Warrant Register"). The Company shall
be entitled to treat the Holder of the Warrant as the owner in fact thereof for
all purposes and shall not be bound to recognize any equitable or other claim to
or interest in such Warrant on the part of any other person, and shall not be
liable for any Company registration or transfer of Warrant which is registered
or to be registered in the name of a fiduciary or the nominee of a fiduciary
unless made with the actual knowledge that a fiduciary or nominee is committing
a breach of trust in requesting such registration of transfer, or with such
knowledge of such facts that its participation therein amounts to bad faith.
1.2 TRANSFER RESTRICTIONS. The Holder may not transfer the
Warrant without the prior written consent of the Company, which consent may be
granted or denied in the sole discretion of the Company except that all or a
portion of this Warrant may be transferred to any employee of Global Media
Management Group,. Inc., any family member of Holder or in connection with
estate planning matters (including by operation of law). Should such consent be
granted, the Warrant so transferred shall continue to be bound by this
restriction in the hands of a subsequent Holder, and the Company shall not
recognize any attempted transfer of the Warrant in violation of this Agreement.
1.3 TRANSFER - GENERAL. Subject to the terms hereof, the Warrant
shall be transferable only on the books of the Company maintained at its
principal office upon delivery thereof duly endorsed by the Holder or by his
duly authorized attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer. In all cases of transfer by an
attorney, the original power of attorney, duly approved, or a copy thereof, duly
certified, shall be deposited and remain with the Company. In case of transfer
by executors, administrators, guardians or other legal representatives, duly
authenticated evidence of their
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authority shall be produced, and may be required to be deposited and to remain
with the Company in its discretion. Upon any registration of transfer, the
Company shall countersign and deliver a new Warrant to the persons entitled
thereto. The Company or the Warrant Agent may require the payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any such transfer.
1.4 FORM OF THE WARRANT. The text of the Warrant and of the form
of election to purchase Warrant Shares (the "Purchase Form") shall be
substantially as set forth respectively in Exhibits A and B attached hereto. The
price per Warrant Share and the number of Warrant Shares issuable upon exercise
of the Warrant are subject to adjustment upon the occurrence of certain events,
all as hereinafter provided. The Warrant shall be executed on behalf of the
Company by its Chairman of the Board, its Chief Executive Officer, President or
one of its Vice Presidents, under its corporate seal reproduced thereon, and
attested by its Secretary or an Assistant Secretary.
The Warrant shall be dated as of the date of countersignature
thereof by the Company either upon initial issuance or upon transfer.
SECTION 2. TERM OF THE WARRANT; EXERCISE OF THE WARRANT; WARRANT PRICE,
ETC.
2.1 TERM OF THE WARRANT. Subject to the terms of this Agreement,
the Holder shall have the right, which may be exercised from time to time, from
and through the dates set forth in the Warrant, to purchase from the Company the
number of fully paid and nonassessable Warrant Shares which the Holder may at
the time be entitled to purchase on exercise of such Warrant. If the last day
for the exercise of the Warrant shall not be a business day, then the Warrant
may be exercised on the next succeeding business day.
2.2 VESTING OF THE WARRANT. The Warrant is vested in full and may
be exercised on or after the date hereof in accordance with the terms of this
Agreement and the Warrant Certificate.
2.3 EXERCISE OF THE WARRANT. The Warrant may be exercised upon
surrender to the Company, at its principal office, of the certificate evidencing
the Warrant to be exercised, together with the Purchase Form on the reverse
thereof duly filled in and signed, and upon payment to the Company, of the
Warrant Price (as defined in and determined in accordance with the provisions of
Sections 2 and 6 hereof), for the number of Warrant Shares in respect of which
such Warrant is then exercised. Upon partial exercise, a Warrant Certificate for
the unexercised portion shall be delivered to the Holder. Payment of the Warrant
Price shall be made at the option of the Holder by one or more of the following
methods: (i) by delivery of cash, or a certified or official bank check in the
amount of such Warrant Price, (ii) by instructing the Company to withhold a
number of Warrant Shares then issuable upon exercise of the particular Warrant
with an aggregate current market price (as defined in Section 6.1(e) hereof)
equal to such Warrant Price (the "Net Exercise Option"), or (iii) by
surrendering to the Company shares of Common Stock previously acquired by the
Holder with an aggregate current market price equal to such Warrant Price, or
any combination of foregoing. In the event of any withholding of Warrant Stock
or surrender of Common Stock pursuant to clause (ii) or (iii) above where the
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number of shares whose current market price is equal to the Warrant Price is not
a whole number, the number of shares withheld by or surrendered to the Company
shall be rounded down to the nearest whole share.
Subject to Section 3 hereof, upon such surrender of the Warrant
and payment of the Warrant Price as aforesaid, the Company shall issue and cause
to be delivered with all reasonable dispatch to or upon the written order of the
Holder and in such name or names as the Holder may designate, a certificate or
certificates for the number of full Warrant Shares so purchased upon the
exercise of such Warrant, together with cash, as provided in Section 8 hereof,
in respect of any fractional Warrant Shares otherwise issuable upon such
surrender. Such certificate or certificates shall be deemed to have been issued
and any person so designated to be named therein shall be deemed to have become
a holder of record of such Warrant Shares as of the date of the surrender of
such Warrant and payment of the Warrant Price, as aforesaid.
2.4 COMPLIANCE WITH GOVERNMENT REGULATIONS. Holder acknowledges
that none of the Warrant or Warrant Shares has been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and therefore may be
sold or disposed of in the absence of such registration only pursuant to an
exemption from such registration and in accordance with this Agreement. The
Warrant and the Warrant Shares will bear a legend to the following effect:
"THE SALE OF THE SECURITIES REPRESENTED HEREBY HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. NO SALE OR OTHER DISPOSITION OR
PLEDGE OF THESE SECURITIES OR THE SECURITIES
UNDERLYING THESE SECURITIES CAN BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATING THERETO OR AN AVAILABLE EXEMPTION FROM
REGISTRATION."
2.5 WARRANT PRICE. The price per share at which Warrant Shares
shall be purchasable upon exercise of the Warrant (the "Warrant Price") shall be
$12.75, subject to adjustment pursuant to Section 6 hereof.
SECTION 3. PAYMENT OF TAXES.
3.1 PAYMENT OF TAXES. The Company will pay all documentary stamp
taxes, if any, attributable to the initial issuance of Warrant and Warrant
Shares upon the exercise of Warrant; provided, however, that the Company shall
not be required to pay any income tax or taxes resulting from the issuance of
the warrant or any other tax or taxes which may be payable in respect of any
transfer involved in the issue or delivery of the Warrant or certificates for
Warrant Shares.
SECTION 4. MUTILATED OR MISSING WARRANT. In case the Warrant shall be
mutilated, lost, stolen or destroyed, the Company shall issue and deliver in
exchange and substitution for and upon cancellation of the mutilated Warrant, or
in lieu of and substitution for the Warrant lost, stolen or destroyed, a new
Warrant certificate of like tenor and representing an equivalent right or
interest; but only upon receipt of evidence reasonably satisfactory to the
Company of
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such loss, theft or destruction of such Warrant certificate and indemnity or
bond, if requested, also reasonably satisfactory to them. An applicant for such
substitute Warrant certificate shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company may prescribe.
SECTION 5. RESERVATION OF WARRANT SHARES.
5.1 RESERVATION OF WARRANT SHARES. There have been reserved, and
the Company shall at all times keep reserved, out of its authorized shares of
Common Stock, a number of shares of Common Stock sufficient to provide for the
exercise of the rights of purchase represented by the outstanding Warrant. The
transfer agent for the Common Stock ("Transfer Agent"), and every subsequent
transfer agent for any shares of the Company's capital stock issuable upon the
exercise of any of the rights of purchase aforesaid will be and are hereby
irrevocably authorized and directed at all times until the Expiration Date to
reserve such number of authorized shares as shall be requisite for such purpose.
The Company will keep a copy of this Agreement on file with the Transfer Agent
and with every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by the
Warrant. The Company covenants that all Warrant Shares which may be issued upon
exercise of Warrant will, upon issue, be fully paid, nonassessable, free of
preemptive rights and free from all taxes, liens, charges and security interests
with respect to the issue thereof. The Company will supply such Transfer Agent
and any subsequent transfer agent with duly executed stock certificates for such
purpose and will itself provide or otherwise make available any cash which may
be payable as provided in Section 8 of this Agreement. The Company will furnish
to such Transfer Agent a copy of all notices of adjustments, and certificates
related thereto, transmitted to each Holder. The Warrant surrendered in the
exercise of the rights thereby evidenced shall be canceled by the Company.
5.2 CANCELLATION OF THE WARRANT. In the event the Company shall
purchase or otherwise acquire the Warrant, the same shall be canceled and
retired.
SECTION 6. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF WARRANT SHARES. The
number and kind of securities purchasable upon the exercise of the Warrant and
the Warrant Price shall be subject to adjustment from time to time upon the
happening of certain events, as hereinafter defined.
6.1 MECHANICAL ADJUSTMENTS. The number of Warrant Shares
purchasable upon the exercise of the Warrant and the Warrant Price shall be
subject to adjustment as follows:
(a) In case the Company shall at any time after the date
of this Agreement (i) declare or pay a dividend in shares of Common
Stock or make a distribution in shares of Common Stock, (ii) subdivide
its outstanding shares of Common Stock, (iii) combine its outstanding
shares of Common Stock into a smaller number of shares of Common Stock
or (iv) issue any shares of its capital stock in a reclassification of
the Common Stock (including any such reclassification in connection with
a consolidation or merger in which the Company is the continuing
entity), the number of Warrant Shares purchasable upon exercise of the
Warrant immediately prior thereto shall
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be adjusted so that the Holder of the Warrant shall be entitled to
receive the kind and number of Warrant Shares or other securities of the
Company which it would have owned or have been entitled to receive after
the happening of any of the events described above, had such Warrant
been exercised immediately prior to the happening of such event or any
record date with respect thereto. An adjustment made pursuant to this
paragraph (a) shall become effective immediately after the effective
date of such event retroactive to the record date, if any, for such
event.
(b) In case the Company shall issue rights, options or
warrants to holders of its outstanding Common Stock entitling them to
subscribe for or purchase shares of Common Stock at a price per share
which is lower at the record date mentioned below than the then current
market price per share of Common Stock (as defined in paragraph (e)
below), the number of Warrant Shares thereafter purchasable upon the
exercise of the Warrant shall be determined by multiplying the number of
Warrant Shares theretofore purchasable upon exercise of the Warrant by a
fraction, of which the numerator shall be the number of shares of Common
Stock outstanding on the date of issuance of such rights, options or
warrants plus the number of additional shares of Common Stock offered
for subscription or purchase, and of which the denominator shall be the
number of shares of Common Stock outstanding on the date of issuance of
such rights, options or warrants plus the number of shares which the
aggregate offering price of the total number of shares of Common Stock
so offered would purchase at the current market price per share of
Common Stock at such record date. Such adjustments shall be made
whenever such rights, options or warrants are issued, and shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such rights, options or warrants.
(c) In case the Company shall distribute to holders of its
shares of Common Stock evidences of its indebtedness or assets
(excluding dividends or distributions referred to in paragraph (a) above
or in the paragraph immediately following this paragraph) or rights,
options or warrants, or convertible or exchangeable securities
containing the right to subscribe for or purchase shares of Common Stock
(excluding those referred to in paragraph (b) above), then in each case
the number of Warrant Shares thereafter purchasable upon the exercise of
the Warrant shall be determined by multiplying the number of Warrant
Shares theretofore purchasable upon the exercise of the Warrant by a
fraction, of which the numerator shall be the then current market price
per share of Common Stock (as defined in paragraph (e) below) on the
date of such distribution, and of which the denominator shall be the
then current market price per share of Common Stock, less the then fair
value (as determined by the Board of Directors of the Company, whose
determination shall be conclusive) of the portion of the assets or
evidences of indebtedness so distributed or of such subscription rights,
options or warrants, or of such convertible or exchangeable securities
applicable to one share of Common Stock. Such adjustment shall be made
whenever any such distribution is made, and shall become effective on
the date of distribution retroactive to the record date for the
determination of stockholders entitled to receive such distribution.
In the event of a distribution by the Company to holders
of its shares of
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Common Stock of stock of a subsidiary or securities convertible into or
exercisable for such stock, then in lieu of an adjustment in the number
of Warrant Shares purchasable upon the exercise of the Warrant, the
Holder of the Warrant, upon the exercise thereof at any time after such
distribution, shall be entitled to receive from the Company, such
subsidiary or both, as the Company shall determine, the stock or other
securities to which such Holder would have been entitled if such Holder
had exercised such Warrant immediately prior thereto, all subject to
further adjustment as provided in this Section 6.1; provided, however,
that no adjustment in respect of dividends or interest on such stock or
other securities shall be made during the term of a Warrant or upon the
exercise of a Warrant other than adjustments required by this Section 6.
(d) In case the Company shall issue shares of Common Stock
or rights, options or warrants containing the right to subscribe for or
purchase shares of Common Stock or securities convertible into Common
Stock (excluding (i) shares, rights, options, warrants or convertible
securities issued in any of the transactions described in paragraphs
(a), (b) or (c) above, or (ii) Warrant Shares issued upon exercise of
the Warrant), for a price per share of Common Stock, in the case of the
issuance of Common Stock, or for a price per share of Common Stock
initially deliverable upon conversion or exchange of such securities
less than the then current market price per share of Common Stock (as
defined in paragraph (e) below) on the date the Company fixed the
offering, conversion or exchange price of such additional shares, the
number of Warrant Shares thereafter purchasable upon the exercise of the
Warrant shall be determined by multiplying the number of Warrant Shares
theretofore purchasable upon exercise of the Warrant by a fraction, of
which the numerator shall be the number of shares of Common Stock
outstanding on such date plus the number of additional shares of Common
Stock offered for subscription or purchase, and of which the denominator
shall be the number of shares of Common Stock outstanding on such date
plus the number of shares which the aggregate offering price of the
total number of shares of Common Stock so offered would purchase at the
current market price per share of Common Stock at such record date. Such
adjustment shall be made whenever such shares, rights, options or
warranties are issued, and shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for
such event.
(e) For the purpose of any computation under Section 2.3
or paragraphs (b), (c) and (d) of this Section, the current market price
per share of Common Stock at any date shall be the average of the daily
closing prices for 10 consecutive trading days commencing 20 trading
days and ending 10 trading days before the date of such computation. The
closing price for each day shall be the last such reported sales price
regular way or, in case no such reported sale takes place on such day,
the average of the closing bid and asked prices regular way for such
day, in each case on the principal national securities exchange or in
the NASDAQ National Market System to which the shares of Common Stock
are listed or admitted to trading or, if not listed or admitted to
trading, the average of the closing bid and asked prices of the Common
Stock in the over-the-counter market as reported by NASDAQ or any
comparable system, or if the Common Stock is not listed on NASDAQ or a
comparable system, the average of the closing bid and asked prices as
furnished by two members of the National Association of
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Securities Dealers, Inc. ("NASD") selected from time to time by the
Board of Directors of the Company for that purpose. In the absence of
one or more such quotations, the Board of Directors of the Company shall
determine in good faith the current market price on the basis of such
quotations as it considers appropriate or in the case of securities
which are not quoted, the Board of Directors of the Company shall
determine in good faith the current market price based upon such
information and advice as it considers appropriate. In the case of
rights, options, warrants or convertible or exchangeable securities, the
price per share of Common Stock shall be determined by dividing (x) the
total amount received or receivable by the Company in consideration of
the sale and issuance of such rights, options, warrants or convertible
or exchangeable securities, plus the total consideration payable to the
Company upon exercise or conversion or exchange thereof, by (y) the
total number of shares of Common Stock covered by such rights, options,
warrants or convertible or exchangeable securities.
(f) Whenever the number of Warrant Shares purchasable upon
the exercise of the Warrant is adjusted, as herein provided, the Warrant
Price payable upon exercise of the Warrant shall be adjusted by
multiplying such Warrant Price immediately prior to such adjustment by a
fraction, of which the numerator shall be the number of Warrant Shares
purchasable upon the exercise of the Warrant immediately prior to such
adjustment, and of which the denominator shall be the number of Warrant
Shares purchasable immediately thereafter.
(g) In case the Company shall sell or issue shares of
Common Stock or rights, options, warrants or convertible or exchangeable
securities containing the right to subscribe or purchase shares of
Common Stock to officers, directors, consultants or employees of the
Company pursuant to an employee stock option plan approved by the
Company's shareholders either at a price not less than 95% of the
current market price of the Company's Common Stock, there shall be no
adjustment in the Warrant Price or the number of Warrant Shares either
upon the initial issuance of such securities or upon the exercise or
conversion thereof.
(h) No adjustment in the number of Warrant Shares
purchasable hereunder shall be required unless such adjustment would
result in an increase or decrease of at least one percent (1%) of the
Warrant Price; provided, however, that any adjustments which by reason
of this paragraph (h) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment or upon
exercise of the Warrant. All calculations shall be made to the nearest
cent or to the nearest one-thousandth of a share, as the case may be.
(i) No adjustment in the number of Warrant Shares
purchasable upon the exercise of the Warrant need be made under
paragraphs (b), (c), or (d) if the Company issues or distributes to the
Holder of the Warrant the shares, rights, options, warrants, or
convertible or exchangeable securities, or evidences of indebtedness or
assets referred to in those paragraphs which the Holder of the Warrant
would have been entitled to receive had the Warrant been exercised prior
to the happening of such event or the record date with respect thereto
and provided there is no tax to such Holder upon such issuance or
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distribution. No adjustment need be made for a change in the par value
of the Warrant Shares.
(j) For the purpose of this Section 6.1, the term "shares
of Common Stock" shall mean (i) the class of stock designated as the
Common Stock of the Company at the date of this Agreement, or any other
class of stock designated as "Common Stock," or (ii) any other class of
stock resulting from successive changes or reclassifications of such
shares consisting solely of changes from no par value to par value,
changes in par value, or changes from par value to no par value. In the
event that at any time, as a result of an adjustment made pursuant to
paragraph (a) above, the Holder shall become entitled to purchase any
securities of the Company other than shares of Common Stock, thereafter
the number of such other shares so purchasable upon exercise of the
Warrant and the Warrant Price of such shares shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Warrant
Shares contained in paragraphs (a) through (h), inclusive, above, and
the provisions of Section 2 and Sections 6.2 through 6.3, inclusive,
with respect to the Warrant Shares, shall apply on like terms to any
such other securities; provided, however, that the Warrant Price shall
at no time be less than the par value of the Common Stock of the
Company; provided, further, that the Company shall reduce the par value
of its Common Stock from time to time as necessary so that such par
value shall not be more than the Warrant Price then in effect.
(k) Upon the expiration of any rights, options, warrants
or conversion or exchange privileges, the issuance of which required an
adjustment in the number of shares of Common Stock purchasable upon
exercise of the Warrant, if any thereof shall not have been exercised,
the Warrant Price and the number of shares of Common Stock purchasable
upon the exercise of the Warrant shall, upon such expiration, be
readjusted and shall thereafter be such as it would have been had it
been originally adjusted (or had the original adjustment not been
required, as the case may be) as if (A) the only shares of Common Stock
so issued were the shares of Common Stock, if any, actually issued or
sold upon the exercise of such rights, options, warrants or conversion
or exchange rights and (B) such shares of Common Stock, if any, were
issued or sold for the consideration actually received by the Company
upon such exercise plus the aggregate consideration, if any, actually
received by the Company for the issuance, sale or grant of all such
rights, options, warrants or conversion or exchange rights whether or
not exercised; provided, however, that no such readjustment shall have
the effect of increasing the Warrant Price or decreasing the number of
shares of Common Stock purchasable upon the exercise of the Warrant by
an amount in excess of the amount of the adjustment initially made in
respect to the issuance, sale or grant of such rights, options, warrants
or conversion or exchange rights, and provided further that the issuance
of shares of Common Stock pursuant to rights, options, warrants or
conversion or exchange rights shall not be cause for additional
adjustments beyond the adjustments provided in respect of the initial
issuance of the rights, options, warrants or conversion or exchange
rights.
6.2 NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares
purchasable upon the exercise of the Warrant or the Warrant Price of such
Warrant Shares is
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adjusted, as herein provided, the Company shall mail by first class, postage
prepaid, to each Holder notice of such adjustment or adjustments and shall
deliver to the Holder a copy of a certificate of either the Board of Directors
of the Company or of a firm of independent public accountants selected by the
Board of Directors of the Company (who may be the regular accountants employed
by the Company) setting forth the number of Warrant Shares purchasable upon the
exercise of the Warrant and the Warrant Price of such Warrant Shares after such
adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which such adjustment was made.
Such certificate shall be conclusive evidence of the correctness of such
adjustment in the absence of manifest error.
6.3 NO ADJUSTMENT FOR DIVIDENDS. Except as provided in Section
6.1, no adjustment in respect of any dividends shall be made during the term of
a Warrant or upon the exercise or conversion of a Warrant.
6.4 PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all the property of the Company, the Company
or such successor or purchasing corporation, as the case may be, shall execute
an amendment to this Agreement that each Holder shall have the right thereafter
upon payment of the Warrant Price in effect immediately prior to such action to
purchase upon exercise of the Warrant the kind and amount of shares and other
securities and property which it would have owned or have been entitled to
receive upon the happening of such consolidation, merger, sale, transfer or
lease had such Warrant been exercised immediately prior to such action. Such
agreement shall provide for adjustments, which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section 6. The
provisions of this Section 6.4 shall similarly apply to successive
consolidations, mergers, sales, transfers or leases.
6.5 STATEMENT ON THE WARRANT. Irrespective of any adjustments in
the Warrant Price or the number or kind of shares purchasable upon the exercise
of the Warrant, the Warrant theretofore or thereafter issued may continue to
express the same price and number and kind of shares as are stated in the
Warrant initially issuable pursuant to this Agreement.
SECTION 7. REGISTRATION RIGHTS.
7.1 CERTAIN DEFINITIONS.
As used in this Warrant Agreement, the following terms shall have
the following respective meanings:
(a) COMMISSION means the Securities and Exchange
Commission.
(b) EXCHANGE ACT means the Securities Exchange Act of
1934, as amended, or any successor act, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect at the
time.
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(c) REGISTRABLE SECURITIES means the Warrant Shares issued
or issuable upon exercise of the Warrants, provided, however, that Registrable
Securities shall not include any Shares which have theretofore been registered
and sold pursuant to the Securities Act or which have been sold to the public
pursuant to Rule 144 or any similar rule promulgated by the Commission pursuant
to the Securities Act, and, provided further, the Company shall have no
obligation under Section 7 to register any Registrable Securities of a Holder if
the Company shall deliver to the Holders requesting such registration an opinion
of counsel reasonably satisfactory to such Holders and its counsel to the effect
that the proposed sale or disposition of all of the Registrable Securities for
which registration was requested does not require registration under the
Securities Act for any sales or dispositions of such shares within the period
set forth in Rule 144(e), currently three (3) months. For purposes of this
Agreement, a Person will be deemed to be a holder of Registrable Securities
whenever such Person has the then-existing right to acquire such Registrable
Securities (by conversion, subscription or otherwise), whether or not such
acquisition has actually been effected. As to any particular Registrable
Security, once issued, such security shall cease to be one of the Registrable
Securities when (x) such security shall have been transferred to any person
pursuant to an effective registration statement, (y) such security shall have
been transferred to any person that is not an Affiliate (as defined in the
Exchange Act) of the initial Warrant Holder pursuant to Rule 144 (or any
successor provision) under the Securities Act and the shares thereupon are
freely tradeable, or (z) such security shall have ceased to be outstanding.
(d) REGISTRATION EXPENSES means all expenses incident to
the Company's performance of or compliance with the registration rights herein,
including, without limitation, all registration, filing, listing and NASD fees,
all fees and expenses of complying with securities or blue sky laws, all word
processing, duplicating and printing expenses, messenger and delivery expenses,
fees and expenses of Company's counsel and independent public accountants,
including the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, and any fees and
disbursements of underwriters customarily paid by issuers and sellers of
securities; provided, however, that Registration Expenses shall not include fees
and expenses of counsel for the holders of Registrable Securities nor shall it
include underwriting discounts, commissions and transfer taxes, if any, relating
to the offer and sale of Registrable Securities, all of which shall be borne by
such holders.
(e) SECURITIES ACT means the Securities Act of 1933, as
amended, or any successor act thereto, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect at the
time.
7.2 REGISTRATION.
(a) DEMAND REGISTRATION. (1) If the Holders of Registrable
Securities make a written request to the Company (the "Demanding Holders"), the
Company shall cause there to be filed with the Commission a registration
statement meeting the requirements of the Securities Act (a "Demand
Registration"), and each Demanding Holder shall be entitled to have included
therein (subject to Section 7.2(d)) all or such number of such Demanding
Holder's Registrable Securities, as the Demanding Holder shall request in
writing; provided, however, that no request may be made pursuant to this Section
7.2(a) if within six (6) months prior to the date
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of such request a registration statement pursuant to this Section 7.2 shall have
been declared effective by the Commission. Such Demand Registration shall be
effected by the Company by means of a registration statement on Form S-3, if
available to the Company. Any request made pursuant to this Section 7.2(a) shall
be addressed to the attention of the Secretary of the Company, and shall specify
the number of Registrable Securities to be registered, the intended methods of
disposition thereof and that the request is for a Demand Registration pursuant
to this Section 7.2(a). The Holders (including Xxxxxxx X. Xxxxxx, Xxxxxxx X.
Hope and Xxxxxxx Xxxxxx and their successors pursuant to this Warrant Agreement)
shall be entitled to no more than one (1) Demand Registration.
(2) The Company shall be entitled to postpone for up to
ninety (90) days the filing of any registration statement otherwise required to
be prepared and filed pursuant to this Section 7.2(a), if the Board determines,
in its good faith reasonable judgment (with the concurrence of the managing
underwriter, if any), that such registration and the sale of Registrable
Securities contemplated thereby would materially interfere with, or require
premature disclosure of, any financing, acquisition or reorganization involving
the Company or any of its wholly owned subsidiaries and the Company promptly
gives the Demanding Holders notice of such determination; provided, however,
that the Company shall not have postponed pursuant to this Section 7.2(a)(ii)
the filing of any other registration statement otherwise required to be prepared
and filed pursuant to this Section 7.2 during the twelve (12) month period ended
on the date of the relevant request pursuant to Section 7.2(a).
(b) COMPANY REGISTRATION. If (without any obligation to do
so) the Company proposes to register (including for this purpose any
registration effected by the Company for holders other than the holders of
Registrable Securities) any of its Common Stock or other securities under the
Securities Act in connection with the public offering of such securities solely
for cash (other than a registration on Forms S-4 or S-8 or equivalent successor
forms), then the Company shall, at such time, promptly give all holders of
Registrable Securities written notice of such registration. Any such
registration effected by the Company is referred to herein as a "Company
Registration." Upon the written request of one or more of such holders given
within fifteen (15) days after the giving of such notice by the Company, the
Company shall, subject to the provisions of Section 7.2(c) below, cause to be
included in such registration statement and registered under the Securities Act
all of the Registrable Securities that each such holder ("Participating
Holders") has requested to be registered.
(c) EXPENSES. The Company shall pay all Registration
Expenses incurred in connection with the registration of Registrable Securities
pursuant to Section 7.2(a).
(d) PRIORITY IN REQUESTED REGISTRATIONS. If the Company
Registration pursuant to Section 7.2(b) involves an underwritten offering, and
the managing underwriter shall advise the Company in writing, with a copy to the
Participating Holders that, in its opinion, the number of securities requested
to be included in such registration (including securities of the Company which
are not Registrable Securities) exceeds the number which can be sold in such
offering; then, in the case of a Company Registration shares shall be included
in the following priority: (x) first, other securities to be sold for the
account of the Company to be
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included in the Company Registration, and (y) second, the Registrable Securities
and other securities of the Company entitled to similar registration rights, pro
rata, in proportion to the number of Registrable Securities and other securities
requested to be included in such registration statement.
7.3 REGISTRATION PROCEDURES.
(a) If and whenever the Company is required to use its
best efforts to effect the registration of any Registrable Securities under the
Securities Act as provided in Section 7.2, the Company, as expeditiously as
possible and subject to the terms and conditions of Section 7.2, will:
(i) prepare and file with the Commission the
requisite registration statement to effect such registration and use its best
efforts to cause such registration to become effective;
(ii) furnish to each Participating Holder such number
of conformed copies of such registration statement and of each such amendment
and supplement thereto, such number of copies of the prospectus contained in
such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act, and
such other documents, as each Participating Holder may reasonably request;
(iii) immediately notify the Participating Holders at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading and at
the request of the Participating Holders promptly prepare and furnish to the
Participating Holders a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; and
(iv) use its best efforts to list all Registrable
Securities covered by such registration statement on the securities exchange or
NASD/NMS, if any, on which the Common Stock is then listed.
(b) The Company may require each Participating Holder to
furnish the Company with such information and undertakings as it may reasonably
request regarding the holders requesting registration and the distribution of
such securities as the Company may from time to time reasonably request in
writing.
(c) Each Participating Holder agrees (A) that upon receipt
of any
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notice from the Company of the happening of any event of the kind described in
Section 7.3(a)(iii), such holder will forthwith discontinue its disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until receipt by such Participating Holder of the copies
of the supplemented or amended prospectus contemplated by subdivision (a)(iii)
of this Section 7.3 and, if so directed by the Company, will deliver to the
Company all copies, other than permanent file copies, then in such holder's
possession of the prospectus relating to such Registrable Securities at the time
of receipt of such notice and (b) that it will immediately notify the Company,
at any time when a prospectus relating to the registration of such Registrable
Securities is required to be delivered under the Securities Act, of the
happening of any event as a result of which information previously furnished by
such Participating Holder to the Company in writing for inclusion in such
prospectus contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(d) Nothing in this Agreement to the contrary, the Company
will not be required to file such a registration statement with respect to, or
include in any registration statement, any Registrable Securities if the Company
obtains an opinion (in form and substance satisfactory to the holder requesting
registration) of counsel acceptable to the holder of such Registrable Securities
to the effect that the sale of the Registrable Securities in the manner
contemplated by such holder may be effected without registration regardless of
the identity or status of the buyer(s) of such Registrable Securities and that
such securities are freely tradeable.
7.4 INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any
registration under the Securities Act pursuant to Section 7 hereof of any
Registrable Securities covered by such registration, the Company will, and
hereby does, indemnify and hold harmless the Participating Holders, their
directors and officers, each other person who participates as an underwriter in
the offering or sale of such securities (if so required by such underwriter as a
condition to including the Participating Holders' Registrable Securities in such
registration) and each other person, if any, who controls the Participating
Holders or any such underwriter within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
the Participating Holders or any such director or officer or underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein or any document
incorporated therein by reference, or any amendment or supplement thereto, or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Company will reimburse the Participating Holders and each such director,
officer, underwriter and controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding; provided that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage,
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liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Participating Holder specifically for inclusion therein; provided
further that the Company shall not be liable to any person who participates as
an underwriter in the offering or sale of Registrable Securities or any other
person, if any, who controls such underwriter within the meaning of the
Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of such person's failure to send or give a copy of the final prospectus to
the person claiming an untrue statement or alleged untrue statement or omission
or alleged omission at or prior to the written confirmation of the sale of
Registrable Securities to such person if such statement or omission was
corrected in such final prospectus.
(b) INDEMNIFICATION BY THE PARTICIPATING HOLDERS. The Company may
require, as a condition to including any Registrable Securities of the
Participating Holders in any registration statement filed pursuant to Section 7,
that the Company shall have received an undertaking satisfactory to it from the
Participating Holders to indemnify and hold harmless (in the same manner and to
the same extent as set forth in subdivision (a) of this Section 7.4) the
Company, each director of the Company, each officer of the Company and each
other person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by the Participating Holders
specifically for inclusion therein.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section 7.4,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action, provided that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this Section 7.4, except to the extent that
the indemnifying party is actually and materially prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall consent to entry of any judgment or enter into any settlement
without the consent of the indemnified party which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a
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release from all liability in respect to such claim or litigation.
(d) OTHER INDEMNIFICATION. Indemnification similar to that
specified in the preceding subdivisions of this Section 7.4 (with appropriate
modifications) shall be given by the Company and the Participating Holders with
respect to any required registration or other qualification of securities under
any Federal or state law or regulation of any governmental authority, other than
the Securities Act.
(e) CONTRIBUTION. If the indemnification provided for in this
Section 7.4 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to herein, then the indemnifying party, to the extent such
indemnification is unavailable, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions that resulted in
such losses, claims, damages, liabilities or expenses. The relative fault of
such indemnifying party and indemnified parties shall be determined by reference
to, among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 7.4(e) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
10(f) of the Securities Act) shall be entitled to contribution from any person.
In no event shall any participating Holder be obligated to contribute an amount
in excess of the net amount received by such Holder in respect of the securities
sold in the related offering.
If indemnification is available under this Section 7.4, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Sections 7.4(a) and 7.4(b) without regard to the relative fault of
said indemnifying parties or indemnified party or any other equitable
consideration provided for in this Section 7.4(e).
SECTION 8. FRACTIONAL INTERESTS. The Company shall not be required to
issue fractional Warrant Shares on the exercise of the Warrant. If any fraction
of a Warrant Share would, except for the provisions of this Section 8, be
issuable on the exercise of the Warrant (or specified portion thereof), the
Company shall pay an amount in cash equal to the closing price for one share of
the Common Stock, as defined in paragraph (e) of Section 6.1, on the trading day
immediately preceding the date the Warrant is presented for exercise, multiplied
by such fraction.
SECTION 9. NO RIGHTS AS STOCKHOLDER; NOTICES TO HOLDER. Nothing
contained in this
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Agreement or in the Warrant shall be construed as conferring upon the Holder or
its permitted transferees the right to vote or to receive dividends or to
consent to or receive notice as a stockholder in respect of any meeting of
stockholders for the election of directors of the Company or any other matter,
or any rights whatsoever as a stockholder of the Company.
SECTION 10. INSPECTION OF WARRANT AGREEMENT. The Company shall keep
copies of this Agreement and any notices given or received hereunder available
for inspection by the Holder during normal business hours at its principal
office.
SECTION 11. IDENTITY OF TRANSFER AND WARRANT AGENT. Forthwith upon the
appointment of any subsequent transfer agent for the Common Stock or Warrant
Agent, or any other shares of the Company's capital stock issuable upon the
exercise of the Warrant, the Company will notify the Holder of the name and
address of such subsequent transfer agent.
SECTION 12. NOTICES. Any notice pursuant to this Agreement by any Holder
to the Company, shall be in writing and shall be mailed first class, postage
prepaid, or delivered to the Company at its office at 1999 Avenue of the Stars,
Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx, 00000, Attention: Chief Executive Officer.
Each party hereto may from time to time change the address to
which notices to it are to be delivered or mailed hereunder by notice in writing
to the other party. Any notice mailed pursuant to this Agreement by the Company
or the Warrant Agent to the Holder shall be in writing and shall be mailed first
class, postage prepaid, or delivered to the Holder at its address on the books
of the Warrant Agent.
SECTION 13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without giving
effect to principles of conflict of laws. The parties hereto agree to submit to
the jurisdiction of the Courts of the State of California in any action or
proceeding arising out of or relating to this Agreement.
SECTION 14. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement in order to cure
any ambiguity or to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provision herein, or to make any
other provisions in regard to matters or questions arising hereunder which the
Company and the Warrant Agent may deem necessary or desirable and which shall
not be inconsistent with the provisions of the Warrant and which shall not
adversely affect the interests of the Holder.
SECTION 15. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 16. MERGER OR CONSOLIDATION OF THE COMPANY. So long as the
Warrant remains outstanding, the Company will not merge or consolidate with or
into, or sell, transfer or lease all or substantially all of its property to,
any other corporation unless the successor or purchasing corporation, as the
case may be (if not the Company), shall expressly assume, by
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18
supplemental agreement, the due and punctual performance and observance of each
and every covenant and condition of this Agreement to be performed and observed
by the Company.
SECTION 17. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall
be construed to give to any person or corporation other than the Company, and
the Holder any legal or equitable right, remedy or claim under this Agreement,
but this Agreement shall be for the sole and exclusive benefit of the Company
and the Holder.
SECTION 18. CAPTIONS. The captions of the Sections of this Agreement
have been inserted for convenience only and shall have no substantive effect.
SECTION 19. COUNTERPARTS. This Agreement may be executed in any number
of counterparts each of which so executed shall be deemed to be an original; but
such counterparts together shall constitute but one and the same instrument.
* * *
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19
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed as of the day, month and year first above written.
THE COMPANY:
THE XXXXXX ENTERTAINMENT COMPANY THE WARRANT AGENT:
a California corporation
THE XXXXXX ENTERTAINMENT COMPANY
a California corporation
By:
-----------------------------
Xxxx X. Xxxx By:
Chairman of the Board -------------------------------
Xxxx X. Xxxx
Chairman of the Board
THE WARRANT HOLDER: THE XXXXXX ENTERTAINMENT COMPANY
a California corporation
XXXXXXX X. XXXXXX (155,200 shares)
By:
-------------------------------
Signature Xxxx X. Xxxx
Chairman of the Board
Address: THE WARRANT HOLDER:
XXXXXXX X. HOPE (38,800 shares)
THE WARRANT HOLDER:
XXXXXXX XXXXXX (6,000 shares) Signature
Address:
Signature
Address:
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EXHIBIT A
Warrant Certificate
Warrant No. __ ________ Shares
COMMON STOCK PURCHASE WARRANT
Void After 5:00 P.M.
Pacific Time on March 23, 2003
THIS CERTIFIES THAT, for value received, ____________, the registered
holder of this Common Stock Purchase Warrant (the "Warrant") or permitted
assigns (the "Holder"), is entitled to purchase from The Xxxxxx Entertainment
Company, a California corporation (the "Company"), at any time until 5:00 p.m.
Pacific Time on March 23, 2003 (the "Expiration Date"), at the purchase price of
$12.75 per share (the "Warrant Price"), the number of shares of Common Stock of
the Company (the "Common Stock") which is equal to the number of Shares set
forth above. The number of shares purchasable upon exercise of this Warrant and
the Warrant Price per share shall be subject to adjustment from time to time as
set forth in the Warrant Agreement referred to below.
This Warrant is issued under and in accordance with a Warrant Agreement,
dated as of March 23, 1998, between the Company Agent and the Warrant Holder and
is subject to the terms and provisions contained in the Warrant Agreement, to
all of which the Holder of this Warrant by acceptance hereof consents. A copy of
the Warrant Agreement may be obtained for inspection by the Holder hereof upon
written request to the Company.
This Warrant may be exercised in whole or in part by presentation of
this Warrant with the Purchase Form on the reverse side hereof duly executed and
simultaneous payment of the Warrant Price (subject to adjustment) at the
principal office of the Company in Los Angeles, California. Payment of such
price shall be payable at the option of the Holder hereof in cash or by
certified or official bank check or wire transfer. Terms relating to exercise of
Warrant is set forth more fully in the Warrant Agreement.
This Warrant may be exercised in whole or in part. Upon partial
exercise, a Warrant Certificate for the unexercised portion shall be delivered
to the Holder. No fractional shares will be issued upon the exercise of this
Warrant but the Company shall pay the cash value of any fraction upon the
exercise of the Warrant. This Warrant is transferable only in limited
circumstances as described in this Warrant Agreement at the office of the
Company in Los Angeles, California, in the manner and subject to the limitations
set forth in the Warrant Agreement.
"THE SALE OF THE SECURITIES REPRESENTED HEREBY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS
21
AMENDED (THE "ACT"). NO SALE OR OTHER DISPOSITION OR PLEDGE OF THESE
SECURITIES OR THE SECURITIES UNDERLYING THESE SECURITIES CAN BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR AN
AVAILABLE EXEMPTION FROM REGISTRATION."
The Holder hereof may be treated by the Company and all other persons
dealing with this Warrant as the absolute owner hereof for any purpose and as
the person entitled to exercise the rights represented hereby, or to the
transfer hereof on the books of the Company. Any notice to the contrary
notwithstanding, and until such transfer on which books, the Company may treat
the Holder hereof as the owner for all purposes.
This Warrant does not entitle any Holder hereof to any of the rights of
a stockholder of the Company.
THE XXXXXX ENTERTAINMENT COMPANY
By:
-------------------------------
Xxxx X. Xxxx
Chairman of the Board
Attest
-------------------------------
Xxxxxxx X. Hope
Interim Secretary
DATED: As of March 23, 1998
22
EXHIBIT B
PURCHASE FORM
Mailing Address
------------------------------- -------------------------------
------------------------------- -------------------------------
------------------------------- -------------------------------
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant for, and to purchase thereunder,
_______________ shares of the stock provided for therein, and tenders herewith
payment of the purchase price in full in the form of cash or by cashier's check
in the amount of $______________ or as otherwise provided in the Warrant
Agreement.
The undersigned requests that certificates for such shares be issued in
the name of:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please Print Name, Address and Social Security No.)
DATED: , ______
Name of Warrant Holder or Permitted Assignee:
--------------------------------------------------------------------------------
Address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Signature:
----------------------------------------------------------------------
Signature Guaranteed: Note: The above signature must correspond with the
name as written upon the face of this Warrant
Certificate in every particular, without
alteration or enlargement or any change
whatever, unless this Warrant has been assigned.
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